Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This is an appeal from the Elkton City Police Department's denial of Timothy G. Adkins's open records request to inspect and make copies of "police reports on Tammy Adkins between the periods of 6/97 and 12/98."
Responding on behalf of the police department, Laura Brock, City Clerk, City of Elkton, denied Mr. Adkins's request, stating in part:
This is in response to your recent request for information under the Open Records Act concerning Tamantha May Adkins, seeking information regarding disturbances that occurred between she and her family members, for which a police report was made during the period of 6/97 through 12/98.
Please be advised that no arrests have been made, according to the records of the Elkton Police Department in connection with Tamantha May Adkins, or Wayne and Gwendolyn Alder.
Any other information sought pursuant to your request would fall under KRS 61.878, exempting from inspection certain records.
Citing specifically KRS 61.878(1)(a),(h),(i), and (j), the Department stated that the requested records were exempt from disclosure because they contain information of a personal nature where the public disclosure would constitute an unwarranted invasion of personal privacy [KRS 61.878(1)(a)]; they are records of a law enforcement agency compiled in investigating alleged disturbances [KRS 61,878(1)(h)]; any investigative reports would only be preliminary in nature and would not involve any final action by the Department [KRS 61.878(1)(i)]; and any Department records regarding mere disturbances which do not include arrests would fall within the scope of KRS 61.878(1)(j), which relates to preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
After receipt of the letter of appeal, we sent a "Notification to Agency
of Receipt of Open Records Appeal" to the City and enclosed a copy of Mr. Adkins's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Brock provided this office with a response to the issues raised in the appeal. In her response, Ms. Brock stated:
It is the belief of the City of Elkton and the Elkton Police Department that the release of the requested information regarding domestic disturbances to Mr. Timothy G. Adkins invades the privacy of individuals involved. Mr. Adkins' request for information regarding his former wife involves complaint reports only in which no further action was taken. Information contained in other reports regarding Tamantha Adkins' family members contains information of a personal nature where public disclosure would constitute an invasion of personal privacy.
We are asked to determine whether the Department properly denied Mr. Adkins's request. For the reasons that follow, we conclude the denial of the request for the police reports was inconsistent with the requirements of the Open Records Act.
This office has consistently recognized that records of the activities of a police department are open to public inspection unless the disclosure would jeopardize an ongoing case or a decision to prosecute has not been made. OAG 88-58.
Moreover, this office has recognized that among the records local law enforcement agencies are generally required to make available for public inspection, subject to applicable statutory exceptions, are the daily log of arrests, complaints received from citizens, and records they maintain or are compiled incident to or occurring in the agency's daily operation which reflect how the law enforcement agency is performing its public function. OAG 91-131.
In regard to police incident reports, this office, in OAG 77-102, stated:
It is our opinion that generally the "police blotter" or police "incident report" is not exempt from public inspection. If a police department feels it necessary to withhold certain items from public inspection in order to protect a police officer or an informant, it may do so under KRS 17.150 but the burden is upon the custodian to justify the refusal with specificity. KRS 17.150(3). Otherwise, records of police departments showing complaints received from citizens and other incidences occurring in its daily operation are open to public inspection.
Recognizing that a police department may, on occasion, "feel it necessary to withhold certain items from public inspection in order to protect a police officer or an informant, " this Office has held that exclusion of particular entries on a dispatch log must be "articulated in terms of the requirements of the statute," and the burden is on the custodian to justify the exclusion with specificity. OAG 77-102, p. 2; OAG 89-20, p. 3; 93-ORD-41.
If all or part of a record is withheld from inspection, the agency is required to provide a written response, which includes a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. KRS 61.880(1). If particular entries of a record are excludable, the agency must provide a particularized justification for their exclusion, separate or mask the excepted, and make the remainder available for inspection. KRS 61.878(4).
In the instant appeal, the Department argues, in main, that the requested reports contain information of a personal nature where public disclosure would constitute an invasion of personal privacy under KRS 61.878(1)(a).
In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times, Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court analyzed this exception at length. Acknowledging that the Open Records Law "exhibits a general bias favoring disclosure, " the court formulated a balancing test to be used in assessing the propriety of an agency's invocation of the privacy exception. The Court reasoned:
Given the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Id. at 327. Recognizing the existence of these competing interests, we have held that it is incumbent on the agency advocating nondisclosure of records relating to an individual victim to satisfy its burden of proof that the privacy interests of that individual are superior to the public's interest in disclosure. "A record devoid of proof beyond a bare allegation as to the seriousness of the incident and the adverse impact on the [victim] of further disclosure will not support a denial based on KRS 61.878(1)(a)." 98-ORD-185, p. 7.
In an early opinion, this office stated that, in general, "the public interest in police business outweighs any privacy interest of victims, offenders, or police personnel." OAG 80-54, p. 3. Shortly thereafter, in OAG 80-144, p. 1, 2, we elaborated on this view, explaining:
Secret police activity without some overriding justification is repugnant to the American system of government. Consequently,
when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.
. . .
[A law enforcement agency] is the servant of the people and if a citizen wants the services of [that agency] to investigate a crime, he cannot expect that the matter will be kept secret.
The Department does not identify, with any degree of specificity, the nature of the privacy interests implicated by release of the police reports. It maintains, generally, that release of the reports containing information regarding domestic disturbances invades the privacy of the individuals involved. We conclude the Department does not establish that the public's interest in release of the police record is outweighed by the individual's privacy interest in withholding the record under KRS 61.878(1)(a). Thus, the Department improperly relied on KRS 61.878(1)(a) in withholding disclosure of the reports.
The Department further argues that the reports are records of a law enforcement agency compiled in investigating alleged disturbances and thus are exempt under KRS 61.878(1)(h). That statute authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In 93-ORD-41, we stated the following in reference to the nondisclosure of police incident reports:
Additionally, if the term "incident report" refers to the document which it is commonly understood to refer to, i.e., police blotters, we believe that there is no exception which could properly be invoked to authorize nondisclosure. In OAG 77-102 and 83-366, this Office held that a police incident report, also known as a police blotter, is not exempt from public inspection unless an enforcement action is pending. If an action is pending, such records may be exempt pursuant to KRS 61.878(1)[h] and KRS 17.150, but the burden is, again, on the custodian to justify the denial with specificity.
In OAG 89-20, we held the City of Winchester improperly denied a request to inspect radio transmission logs generated by the Winchester Police Department, on the basis of what is now codified as KRS 61.878 (1)(h). In so holding, we explained the nature of the logs as follows:
Police dispatch logs are typically seriatim notations, commonly of a summary character, of police dispatches and disposition codes, compiled collaterally to, and not integrally in the process of, detecting and investigating statutory violations, in contrast to, for example, an investigator's notes. In order to be exempted from inspection pursuant to KRS 61.878(1)[h], particulars regarding given notations on a log would have to be articulated in terms of the requirements of the statute.
Finally, in OAG 89-11, this office held that the Jefferson County Police Department improperly denied access to a tape recording of police radio transmissions surrounding a criminal event. In reaching such result, we stated:
In the view of this office, "records compiled in the course of detecting and investigating statutory violations" (as used in KRS 61.878(1)[h]) means those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process. Such phraseology does not encompass electronic recordings of general radio traffic of a police agency, not made uniquely in a specific detection or investigation process, which were "segregated" in connection with an investigation.
We further noted in OAG 89-11 that even if there is reasonable disagreement as to whether the radio tape was compiled in the process of detecting and investigating statutory violations, there must still be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action or administrative adjudication. " KRS 61.878(1)(h).
The Department, in its response, indicated that no arrests had been made and it makes no contention that there is an ongoing investigation or that information in the police report is to be used in a prospective enforcement action, thus implicating KRS 61.878(1)(h). Accordingly, we find that Department improperly denied Mr. Adkins's request for the police reports under authority of KRS 61.878(1)(h).
Nor do we find that KRS 61.878(1)(i) and (j) authorize the Department to withhold police report records of complaints received from citizens, and records they maintain or are compiled incident to or occurring in the agency's daily operation. These provisions permit public agencies to withhold:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In our view, police incident reports cannot be characterized as correspondence, preliminary drafts, or recommendations or preliminary memoranda in which opinions are expressed. These reports generally do not contain preliminary recommendations, opinions, or policy formulations. Simply stated, such records are not "subjective expression[s] of opinion but [are] objective report[s] of . . . fact." OAG 80-596, p. 3. Accordingly, we conclude the Department's reliance on KRS 61.878(1)(j) was misplaced.
In 94-ORD-133, we held that KRS 61.878(1)(i) does not extend to oral complaints or communications, but is limited to "correspondence" as the term is commonly understood. KRS 61.878(1)(i) is thus also inapposite.
In summary, we conclude that the Department failed to meet its burden of establishing that the police reports are exempt from disclosure under any of the cited exceptions. Accordingly, the requested police reports should be made available for Mr. Adkins's inspection. Refusal of inspection of any portion of the police reports must be justified with specificity and with reference to the particular statutory exemption upon which the agency relies.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.